Custody of Elian Was Not a Federal Matter

by Jonathan Wallace

In New York, livery cab drivers are being murdered at an alarming rate. After the ninth such killing this year, the evening news showed us our Democratic senator, Chuck Schumer, promising to find federal money for bullet-proof partitions in cabs.

This was a poignant example of how the distinctions between federal and local government are being elided every day. It is easy to forget, especially when the crisis is emotional and telegenic, that the federal government was created for quite limited purposes. It is not suppose to intervene in matters best handled at a local level.

I want to like Janet Reno--there is something about her no-nonsense, straight-forward demeanor that is appealing, and makes her seem much too good for Bill Clinton. But she seems to get herself repeatedly involved in demonstrations of federal force that are unsupported by any concept of federal jurisdiction the Framers would understand.

Under the fourth and fifth amendments to the U.S. constitution, the federal government is required to have a legal basis in order to invade a house. There was no imaginable legal basis for the feds going in to retrieve Elian, and little attempt was made to provide one.

There were only two possible legal arguments for law enforcement retrieving Elian. One was that his father won a custody battle and the relatives were refusing to turn him over. The other was that Elian had lost a deportation proceeding and the INS came in to get him.

But neither of these things had happened. Elian's father is clearly entitled to custody under the laws of Florida and elsewhere; the fact that we don't like the country he comes from is not going to defeat his parental rights in any neutral court. But enforcement of a valid family court order would be a matter for local law enforcement. A refusal by the local police to enforce it still wouldn't have created a basis for the feds to come in, unless that refusal violated a federal law, which it would not have.

And there was no deportation order. There is a pending application for asylum signed by Elian, and it hasn't been resolved yet. So there was no basis for INS to be involved in a raid on the house either.

The philosophy that "wherever there is a wrong, the federal government should right it" is a dangerous one. The government's complete lack of jurisdiction over the custody of Elian Gonzalez demands more public attention. I don't want the cop on my corner to be a fed.